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Court of Criminal Appeal 24 April 2002

REGINA v ANDERSON

[2002] NSWCCA 141

Assault & violenceTheft & propertyPublic order & justice offences
APPEAL ON CONVICTION IDENTIFICATION WHETHER TRIAL MISCARRIED DUE TO CROSS RIGHT TO SILENCE EVIDENCE ACT 1995 S 89

Citation: Regina v Anderson [2002] NSWCCA 141
Court: NSW Court of Criminal Appeal
Date: 24 April 2002
Judges: Mason P, Dowd J, Greg James J

Background

The appellant was convicted in the District Court on two counts: break, enter and steal in circumstances of aggravation, and indecent assault. The victim was an 88-year-old woman who was attacked and assaulted in her home in South Gundagai late at night. Police found the appellant nearby shortly after the offence, carrying money and items matching those taken from the victim, and wearing a shirt that DNA evidence linked to the victim's blood.

The sole issue at trial was identification. The appellant did not deny being in the vicinity but claimed that another man, Shane Williams, had committed the offence and had been wearing the appellant's borrowed clothing at the time. The appellant said Williams returned the clothing to him shortly before police found him.

The Crown characterised the Shane Williams story as a late invention, pointing to the fact that the appellant had not mentioned Williams or this explanation to police on the night of his arrest.

  • Whether the cross-examination and prosecutorial comment on the appellant's failure to mention Shane Williams to police at the time of arrest infringed his right to silence under section 89 of the Evidence Act 1995
  • Whether the jury was invited to draw an impermissible adverse inference from the appellant's silence during official questioning
  • Whether the trial judge's directions to the jury adequately neutralised the prejudice arising from those impermissible inferences
  • Whether the resulting prejudice was sufficient to constitute a miscarriage of justice

Decision

Mason P (with Dowd J agreeing) found that the cross-examination of the appellant and the Crown Prosecutor's remarks had, in combination, effectively invited the jury to infer that the Shane Williams defence was fabricated because it had not been raised on the night of the arrest. This directly infringed the principle in Petty v The Queen (1991) 173 CLR 95 and section 89 of the Evidence Act 1995, which prohibit adverse inferences being drawn from an accused's silence during official questioning.

The trial judge gave two warnings in response. Mason P accepted that the first, given in context, would likely have conveyed the right message. However, the second warning, delivered during the summing-up, was found to lack sufficient force because it did not explicitly connect the direction to the Crown's specific suggestion: that the Williams story was an invention because it had not been advanced at the time of arrest.

Mason P concluded that the trial had miscarried when the totality of the evidence was considered. The defence rested entirely on the appellant's credibility, making the impermissible cloud cast over his testimony by the Crown's approach particularly damaging. The proviso (which allows an appeal to be dismissed despite a legal error where no substantial miscarriage of justice has occurred) was held not to apply.

Greg James J agreed, characterising the combination of the judicial warnings and the Crown Prosecutor's remarks as an infringement of the principle in Petty v The Queen, and noted it was unnecessary in this case to examine the full scope of section 89 or the right to silence more broadly.

Orders Made

  • Appeal allowed
  • Conviction set aside
  • New trial ordered

Key Takeaways

  • The Court of Criminal Appeal confirmed that section 89 of the Evidence Act 1995 and the principle in Petty v The Queen together prohibit any inference being drawn against an accused from silence during official police questioning.
  • Prosecutorial comment suggesting that a defence was fabricated because it was raised for the first time at trial, rather than at arrest, constitutes an impermissible invitation to draw an adverse inference from silence.
  • Judicial directions designed to neutralise such prejudice must be sufficiently targeted: a direction that does not directly address the specific inference the Crown has invited the jury to draw may be inadequate.
  • Where a conviction rests on a credibility contest and the accused's credibility has been wrongly undermined by prohibited inference, the proviso will not rescue the verdict.
  • Under Petty v The Queen, an accused cannot be penalised, directly or indirectly, for exercising the right to silence when questioned by police.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), section 89
- Criminal Procedure Act 1986 (NSW), section 116

Cases
- Petty v The Queen (1991) 173 CLR 95